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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Lees [1828] NSWSupC 98

stealing, in bank, receiving stolen goods, currency, approver, evidence of, business history

Supreme Court of New South Wales

Dowling J., 24 November 1828

Source: Australian, 25 November 1828

Jas. Lees was arraigned and indicted for receiving, on the 15th Sept. last, one 50l. note, six 20l., four 10l. , four 5l. and six 1l., all notes on the Bank of Australia, due and unsatisfied, laid as the property of Thomas McVitie, Esq. Managing Director of the said Bank, and others, his partners, knowing the same to have been feloniously stolen by some person or persons unknown.  the information contained three counts, varying only in some trifling technicalities.[1 ]

Doctor Wardell, Mr. Rowe, and Mr. W. E. Moore, conducted the case for the prosecution; - Mr. Sydney Stephen, with Mr. Williams, appeared on behalf of the prisoner.

Mr. Francis Stephen - Is Clerk in the Supreme Court Office.  Knows by a memorial registered in that office, that Mr. Thomas McVitie is Managing Director of the Bank of Australia.  The memorial contains also the names of every Director.

Mr. McVitie - Is Managing Director of the Bank of Australia.  Was examined as to the names of the Directors of the Bank of Australia, and to a robbery having been committed between the evening of the 13th, and the morning of the 15th of September last.  The thieves effected their entrance by a drain.  There were notes of several denominations stolen.

James Gough examined.  I am a builder.  I live in Sydney.  From the 25th to the 29th of September last, I was in the Sydney gaol for debt.  I know the prisoner.  While in the gaol, prisoner, whom I had known before, came to me.  Addressing me, he said, I have something of importance to communicate to you.  I made answer, well Jem, what is it.  He told me, he had a number of stolen notes of the Bank of Australia, and could I do any thing with them?  I said I could not do any thing with them; but in the course of a continued observation, I told him if he liked to bring them to me, I would take care of the notes, and either have them back, or, have his share of whatever use I could put them too.  I then questioned him respecting the persons concerned in the robbery.  He said the only one who had done any good, was Jack the Shingler, or John Crayton.  He said another person, of the name of Burn, had been in the robbery, but had got himself into the watch-house that evening to avoid detection on suspicion of being concerned in the robbery.  He then desired me to send my boy to his mother's house, and she would send me some of the notes.  He appointed 12 o'clock in the day time that he would send a message.  This conversation took place in the forenoon of the same day, just after breakfast.  I did send my boy to the house named.  He returned with a parcel of Bank of Australia notes, to the amount of 96l.  I counted the notes in the presence of a fellow prisoner for debt, named Cheethman.  The following day I had another conversation with the prisoner.  I told him that the notes did not amount to so much as he had sent word; for he had sent to say there were upwards of a hundred, whereas there were only 96l.  I went and got the notes and counted them in his presence.  These notes he left with me.  I gave him then two 1l. notes of the New South Wales Bank; I gave these notes as he stated he wanted some money; I promised to give him 5l. in the whole; he then went away, saying he would return next day, and bring some more notes; prisoner at the same time took away a carpenter's plough, which he said would serve as an excuse for his repeated coming there; he also mentioned that caution was necessary, as he had been previously stopped, and searched by the constables about the robbery; understood this robbery to allude to the Bank of Australia, which was then generally talked of, and was publicly advertised in the newspapers.  In pursuance of this appointment for the following day, he brought 110l. in the Bank of Australia notes, of different denominations; there was no conversation held as to how the notes had been obtained; he left these notes with me; he stated that some Bank notes, which had been found by Israel Chapman, were some notes he intended to have brought to me; at that period no further conversation took place; he did not return to me so soon as I expected, and I sent to him to come; when he came, he asked me to let him have 20l. of the notes back; I consulted a person named Cheetham on the propriety of returning these notes; prisoner said, the whole of the notes were planted under a savage dog, and that he could not get at them in the day time; I hereupon let him have the l.20 in notes ; they were Bank of Australia notes; the same he had brought me; they were of the old plate.  The next day I saw the prisoner again; he then brought me 50l. in notes on the Bank of Australia; I then borrowed two 10l. notes on the Bank of New South Wales, and told him if he would bring the whole quantity of notes, he should have these two 10l. notes; he made no immediate answer; I asked him what was the amount of notes he had; he said about 2000l.; at one of the interviews he said something about some dollars; he said they were somewhere in the water at Cockle Bay, breast high, and here the conversation ended.  I was liberated from gaol in the beginning of October, after which the prisoner called on me at my lodgings.

The notes were here produced.

I swear these are the identical notes the prisoner gave me: I know them by the numbers as also by some private marks I have on them.  Prisoner recognised the 96l. in notes which my son brought to me, as being the stolen notes[.]  In total prisoner brought me 258l. but I returned 20l. of this money back.

Cross-examined by Mr. Sydney Stephen - The prisoner is a carpenter by trade.  After living with me about 18 months he ran away from my service.  I understood that on all the notes I could recover I was to get 5 per cent, premium.  I was released from gaol upon giving this information.  My debts were to the amount of 70l.  I do not know who satisfied these debts for me, but I believe Captain Bunn did.  Captain Bunn is said to be a Director of the Bank of Australia.  After I got out of gaol Captain Bunn gave me some money.  I took the numbers of the notes at the time of receiving them.

Re-examined.  I considered that Capt. Bunn's object in releasing me from gaol was in order to facilitate further discovery relative to the Bank robbery, and not to bring about a conviction against the prisoner.  Prisoner had been suspected about the notes, and it was owing to his frequent visits to me in the gaol that gave rise to a suspicion that I knew something about the business; Captain Bunn visited me in gaol, and I described to him all I knew; prisoner told me he had found the notes, but knew them to be part of the notes that had been stolen.

Mr. Peter Gardiner - Between the 13th and 15th September last, the Bank of Australia was robbed of a quantity of notes and silver; I should know some of the notes again if I were to see them, I should know them from several marks on them. -  At the time of the robbery taking place, the notes were deposited in the strong room of the Bank.  [The notes already in evidence were here put into the witness's hands.]  There is a 20l. a 10l. and a 1l. which I know to have been stolen from the Bank between the 13th and 15th Sept. last; I can swear positively to these notes being lodged in the strong room; the 20l. note is 20044, the 10l. is 17128, and the 1l. is 13110; they are Bank of Australia notes.

Cross-examined. - I have been pay-teller in the Bank for the last six months, and have had charge of the old notes; such notes as passed through my hands in a disfigured state, I made it a practice to put such notes by, in order to be destroyed by the Directors.  The 20l. note, I know to be one of the stolen notes, from one part of it being torn in one particular part; I made no memorandum of this circumstance in the books; I cannot say whether or no the 20l note was in the Bank on the 7th of last September; the 10l. note I also know from a tear through the numbers; I have not been in the habit of putting by every note that happened to be torn; it was only notes that were defaced by wear; I am aware that there is an action pending in the Supreme Court, against the Bank, to recover the value of some notes which the Bank have refused the payment of; the 1l. note I am equally positive of; I recollect one of the figures in the number of this note being erased; it was about the 20th of August, I made up about 5000l. of notes to be destroyed by the Directors; the three notes in question were not included in this quantity; the three notes have come into the house since that date.  There were notes of the Bank of Australia in circulation some time after the robbery took place.

William Smith examined - I am a Sydney constable.  I remember seeing the prisoner at the Police Office, when he was under examination there.  Between two and three months ago, after I had heard of the robbery of the Bank, I found some Bank notes under the rafter of a privy near a skilling, on the premises of Mr. Andrew Coss, in the morning about nine o'clock.  My attention was called to the circumstance by seeing some mortar lying loose and then I went to the end of the bed room close to the privy, and there I found a roll of paper under the rafter, one end out.  The landlord of the house laid hold of it, and I looked and found it to be a parcel of notes on the Bank of Australia.  I took the notes to the chief constable.  I did not count the notes, but I understood there were about 140l. worth.  I did not know the prisoner at this time.  It was two or three weeks after the robbery of the Bank.

James Gough, junior, having deposed to a similar effect, the case for the prosecution closed.

Witnesses were called on the prisoner's behalf.

Mr. McVitie deposed to the intrinsic value of the paper, and expence [sic] of printing off notes, being about from 3d. to 4d. each.

James Martin deposed.  That he heard Gough offering 50l. if he (witness) would prosecute the prisoner, as he was an enemy to both of them.

Arthur Martin, father of last witness, corroborated this evidence.

Thomas Sims spoke as to the prisoner's good character.

The defence being here concluded,

Mr. Justice Dowling proceeded to sum up the evidence to the Jury, who, after a few minutes consideration, brought in a verdict of Guilty, upon which the prisoner was remanded.[2 ]

Notes

[1 ] This trial was reported by the Sydney Gazette on 26 November 1828.  See also R. v. Kelly (No. 2), December 1828.

[2 ] He was transported for seven years: R. v.Payne, 1829.  See also Sydney Gazette, 8 January 1829.

Published by the Division of Law, Macquarie University